Sunday, July 31, 2016

The death penalty just became a whole lot more interesting
with Hillary Clinton’s choice of running mate. By selecting Virginia Sen. Tim
Kaine as her running mate, Hillary Clinton chose one of the few Democratic
governors who, like her husband Bill Clinton, put people to death.

Clinton has said she “would breathe a sigh of relief if either the Supreme
Court or the states themselves began to eliminate the death penalty.” According
to Think Progress, Clinton was signaling for the first time that she would
support a court ruling eliminating capital punishment.

With that said, Clinton supports the death penalty being an option for the
federal government.

If Clinton’s stance on capital punishment seems awkward wait until you get a
load of Kaine’s position. Kaine is opposed to the death penalty, yet he
presided over 11 executions as governor of Virginia. The New York Times
reported that Kaine’s handling of capital punishment shows that he recognizes —
and expediently bends — to the reality of the Democratic Party and the state he
represented.

Some death penalty opponents cast his decisions as political survival and
ambition. “Tim is a politician,” Jack Payden-Travers, who ran Virginians for
Alternatives to the Death Penalty, told the Times.

The machinations of the death penalty have the nation’s political parties
abandoning their traditional stances on the ultimate punishment. For instance,
in Ohio, with a GOP governor who was the last man standing in opposition to
Donald Trump, the evolution of the death penalty has been nothing short of
astonishing.

A little more than five years ago, Ohio was second only to Texas with 10
executions in a single year. This year, Ohio has not carried out a single
execution. With GOP John Kasich as governor the state has not executed an
inmate since Jan. 16, 2014.

Executions are not the only thing plummeting in Ohio. The number of capital
murder indictments filed across the state since 2010 has dropped by 77 percent
— just 19 capital indictments were brought in 2015, reported the Cleveland
Plain Dealer.

However, that is not entirely surprising. Cuyahoga County — Cleveland’s home
and the site of the Republican National Convention — had the second most
capital convictions in the state, but there has been a changing of the guard.

In 2013, Cuyahoga County elected a new prosecutor. Tim McGinty is not only less
likely to seek the death penalty but has written to the parole board on behalf
of a condemned inmate declaring that under his leadership the office changed
its approach to capital punishment.

Not unexpectedly, Donald Trump supports the death penalty. He made it clear he
will expand the death penalty to those who kill police officers. His pick for
vice-president Indiana Governor Mike Pence also supports the death penalty.

Where does America stand?

Nationally, a Gallup Poll conducted last fall found that 61 percent of the
public still supports the death penalty although executions are at a 25-year
low.

A number of states — Connecticut, Illinois, Maryland, New Jersey, New Mexico,
New York and Nebraska — have recently abandoned capital punishment. The
governors of four other states — Colorado, Oregon, Pennsylvania and Washington
— have imposed execution moratoriums.

As lethal injection drugs become more and more scarce, some states are looking
for alternatives to lethal injection. Utah is considering bringing back the
firing squad and Oklahoma allows for the use of a firing squad if lethal
injection is unavailable.

Missouri is considering the gas chamber, and the electric chair is still
available in eight states and has been used recently in Virginia and Florida.
Pennsylvania apparently has an ample supply of execution drugs, although the
state hasn’t involuntarily executed an inmate in over 50 years.

The death penalty — rarely imposed and even more rarely carried out — might
just be an issue in 2016.

— Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George
P.C. His book, “The Executioner’s Toll, 2010,” was recently released by
McFarland Publishing. You can reach him at mattmangino.com and follow him on
Twitter at @MatthewTMangino.

Saturday, July 30, 2016

"I think there are going to be ample ­opportunities for the Supreme Court
to ­revisit the issue," Matthew T. Mangino, a ­former Lawrence County
District Attorney who now has a criminal defense practice, said.

Are American law enforcement officers are under threat? That
theory was fueled in speeches by Donald Trump and Rudy Giuliani at the
Republican National Convention, reported the Marshall Project.

A report released by the National Law Enforcement Officers
Memorial Fund — a “nonprofit organization dedicated to telling the story of
American law enforcement and making it safer for those who serve” — will surely
be marshalled to support those pronouncements. The group says 32 law
enforcement officers were shot and killed between Jan. 1 and July 20, 2016,
compared with 18 during the same span of 2015.

The report adds that there have been 14 “ambush killings” of
unsuspecting officers so far this year, versus three in the same period last
year. In March, after Jacai Colson, a police officer in Prince George’s County,
Md., was shot and killed at a police station, Craig T. Floyd, the CEO of the
memorial fund, said in a statement that
the high numbers of police deaths “strongly point to a growing disrespect for
the rule of law in our nation.”

Other researchers have not reacted with the same alarm.
“That’s always a mistake to look at a small portion of time,” says Philip
Stinson, a Bowling Green State University criminologist and former cop who
collects and analyzes data on police officers. “The difference is that people
are paying attention,” he said. “The stories used to be small and local, now
they’re national and international.”

It will not be clear for several years whether the higher
numbers for the first half of 2016 represent a trend. The number of law
enforcement officers killed while on duty has fluctuated significantly by year,
and percentages can look outsized because the total numbers are so small when
set against the total number of sworn officers in the U.S. — 900,000, according to the memorial fund.

Friday, July 29, 2016

Thirty-five years after he shot President Ronald Reagan and
three others outside a D.C. hotel, John W. Hinckley Jr. will be released from a
government psychiatric hospital, reported the Washington Post.

The ruling ends the institutionalization of the one of the
nation’s most notorious mental health patients.

Outrage over Hinckley’s acquittal in the 1981 shooting
reshaped the insanity defense in courts across the country. The revelation that
he had pulled the trigger to impress a movie star added obsession and celebrity
to the case. And extraordinary television footage of the attack on the 40th
U.S. president brought the event to millions of American homes.

In Wednesday’s court order, U.S. District Judge Paul L.
Friedman wrote that Hinckley, 61, no longer poses a
danger to himself or others and will be freed to live full time with his mother
in Williamsburg, Va. His release could come as early as Aug. 5 and is
subject to dozens of conditions, some of which could be phased out after a year
if Hinckley adheres to them.

After an eight-week trial, a federal jury in Washington
found Hinckley not guilty by reason of insanity in June 1982 of all 13 counts
against him, setting off a sharp public backlash. The federal government and 38
states subsequently rewrote laws to raise the standard of proof required for
the insanity defense, which is now rarely used and is even more rarely
successful.

Some research has found that defendants successfully raise
an insanity defense in 1 of 500 felony cases nationwide and that of that small
pool, defendants are freed between 5 and 65 percent of the time depending
on the jurisdiction, making Hinckley’s release all the more exceptional.

Thursday, July 28, 2016

Sen. Tim Kaine (D-Va.), Hillary Clinton's running mate is opposed to the death penalty, yet he presided over 11 executions as governor of Virginia. The New York Times reported that "no issue has been as fraught politically or personally as the death
penalty," Kaine's handling of capital
punishment shows that he recognizes — and expediently bends to, his critics
suggest — the reality of the Democratic Party and the state he represents.
Kaine presided over 11 executions as governor, delaying some but granting
clemency only once. He said that as governor, he was sworn to uphold the law.
Kaine, 58, is well liked even by many Republicans. His centrist appeal is one
reason Clinton added him to her ticket.

Some death penalty opponents cast his decisions as political survival and
ambition. “Tim is a politician,” said Jack Payden-Travers, who ran
Virginians for Alternatives to the Death Penalty when Kaine was governor. “Even
though they say they’re not running for the next office, there’s always
something coming up.” In a 2009 interview with the Virginian-Pilot, he
said each clemency decision had been “very painful,” though his experience as a
lawyer had prepared him. “I’ve eaten the last meal, and I’ve held the
guy’s hand, and I’ve been to the Supreme Court, and I’ve been to the protests,
and I know this very, very well,” he said. “And because of that, it was kind of
demystified.”

Wednesday, July 27, 2016

Youngstown, Ohio Attorney Andrea Burton was held in contempt
of court and arrested after wearing a Black Lives Matter pin to court.

Matt Mangino, a criminal defense attorney who used to be a
prosecutor in Lawrence County, which borders the county where Burton was
arrested, told The Post that a judge has the authority to determine whether
certain signs are “political.”

The judge can also determine whether
wearing a certain button would be a distraction in the courtroom, or give
the impression of bias. Mangino said:

Judges
obviously have wide latitude in their courtroom with regard to decorum and things like that as long as their rules
are reasonable. It’s not uncommon to have dress codes and other sorts of things. What you normally might find is a
sign outside that says lawyers
need to wear ties or no cutoffs or tank tops.

With
regards to protests or political statements, things that can be controversial
if they’re displayed in a courtroom, it
may be akin to wearing a Hillary Clinton button in the court — anything that could disturb the court or
disturb the decorum within a courtroom or
lead to either the impression of bias.

But you
have to balance that with First Amendment. I think that distinction is in
the eye of the beholder. A judge
obviously has great authority and latitude within his or her courtroom. He is the
beholder. Black Lives Matter is so new, what does it mean to a judge? And how does a judge
determine what that means.

Monday, July 25, 2016

The Massachusetts Supreme Judicial Court ordered a new trial
for a man convicted of violently shaking his girlfriend’s toddler in 2007, the second ruling in six weeks that vacated guilty
verdicts in shaken-baby cases, reported the Boston Globe.

Taken together, the two court rulings underscored the court’s
view that the “shaken-baby syndrome” diagnosis has become controversial, and
defense lawyers who fail to challenge it could be depriving their clients of a
fair trial.

In one case, the Supreme Judicial Court said the defense
lawyer should have presented medical evidence challenging prosecutors who had
depicted the child as a victim of shaken-baby syndrome.

In its unanimous ruling, the court found that jurors should
have heard about the possibility that the 2-year-old’s catastrophic eye and
brain injuries — which left her blind in one eye, cognitively impaired, and
moving around in a wheelchair — could have been caused by a short fall of about
3 feet, like one that might have occurred from a kitchen stool.

Doubts have grown about shaken-baby syndrome among defense
lawyers and some professional groups in recent years. Three state medical
examiners in less than two years, for example, backed off earlier rulings that
a baby died of shaken-baby syndrome, choosing instead after hearing from
defense experts to say the cause was “undetermined.”

Several organizations submitted briefs,
including The Innocence Network, the American Civil Liberties Union of
Massachusetts, and the Committee for Public Counsel Services.

Some medical organizations have pushed back, including the
American Academy of Pediatrics,which fears marginal medical theories are
gaining too much traction in the courts, allowing people who abuse infants to
go free. In 2009, however, the academy did acknowledge the controversy brewing
over the role that excessive shaking plays in creating extreme injuries.

The academy now tells doctors to use the term “abusive head
trauma,” rather than shaken-baby syndrome, to indicate that traumatic blows to
the head, not just shaking, are often behind the brain swelling and eye damage
that afflict some 1,000 children each year, often causing permanent
neurological damage if not death, the group said.

Sunday, July 24, 2016

The 2016 Republican and Democratic party platforms — the
GOP’s approved last week, the Democrats’ still in draft form — swing hard to
the right and left, reported The Marshall Project,

That’s particularly clear this year on the subjects of crime
and punishment. In the new Democratic party platform, the fingerprints of the
Black Lives Matter movement and Bernie Sanders are apparent, in calls for
independent investigations of police-involved shootings, more body cameras, and
training in de-escalation. There is a declaration that “states that want to
decriminalize marijuana should be able to do so.” There is also a call for the
end of the death penalty, something President Obama and Hillary Clinton have
not endorsed. Parts of the Democratic draft platform clearly repudiate the
tough language their party embraced a generation ago, when their current
candidate’s husband was president. The mother of Sandra Bland, who died at a
Texas jail last year and became a symbol of the Black Lives Matter movement, is
scheduled to speak at their convention next week in Philadelphia.

The Republican document reflects recent tensions in
conservative circles. It includes the language of conservatives who call for
reducing incarceration — influential Republican patrons like the Koch brothers,
politicians like Rick Perry, Rand Paul and Newt Gingrich — but it also includes
plenty of traditional invocations of law and order. An ambitious bipartisan
sentencing reform effort in Congress, which Sen. Ted Cruz supported and then
abandoned, has been whittled down and allowed to languish. And it was opponents
of that bill including Senator Tom Cotton of Arkansas and Milwaukee Sheriff
David Clarke who were in the
lineup in Cleveland.

Saturday, July 23, 2016

Several years ago when Ohio enacted legislation that
provided an opportunity for offenders to wipe clean their record, Governor John
Kasich said, “Who here doesn’t need to be redeemed? We are giving people a
second chance.”

Why do criminals need a second chance?

When ex-offenders are released from prison their convictions make it extremely
difficult to support themselves because of government-imposed barriers to
successful reentry. For instance, Ohio has 46 statutes that impose driver
license suspensions. Each of those contributes to the difficulty offenders have
in finding or keeping a job.

Criminal records are easily available to potential employers, landlords and
other members of the community. As a result, ex-offenders are frequently denied
access to employment, housing and other community resources.

The stigma of a criminal past is almost a self-fulfilling prophecy. An offender
is convicted, goes to prison, gets out, can’t find legitimate work or housing,
returns to crime, and back to prison. The cycle of recidivism is costly. The
financial cost can be quantified. According to the Vera Institute, state prison
population has grown 700 percent nationwide since the 1970s. The average cost
to house an inmate for a year is $31,286. The human cost — equally enormous —
cannot be broken down into tidy facts and figures.

Federal and state statutes prohibit certain types of employment for those
convicted of a litany of offenses. Ex-offenders are statutorily prohibited from
obtaining licenses for a number of occupations, according to the Urban
Institute Reentry Roundtable.

Jobs requiring contact with children, some health care occupations and security
firms are out-of-reach of ex-offenders. Many employers are simply reluctant to hire
ex-offenders to positions that require handling money, merchandise, or where
there is limited ability to monitor employee performance.

There are inherent obstacles for ex-offenders. Nearly 70 percent of all
offenders are high school dropouts. In “Every Door Closed: Barriers Facing
Parents with Criminal Records,” researchers found that about half of all
offenders are “functionally illiterate.” Many offenders had limited, if any,
employment history prior to incarceration and an absence of job skills.

However, a Texas study found that parolees who obtain employment spend more
time crime-free in the community than unemployed parolees. The study further
indicated that crime-free periods are indicative of positive behavioral changes
that should be supplemented with clinical interventions to help offenders
maintain the initial motivation associated with employment.

There are already some federal prohibitions against job discrimination
regarding ex-felons. In the fall of 2009, the U.S. Equal Employment Opportunity
Commission ruled that screening out job applicants with a criminal record that
would not affect their job performance is illegal because it has the effect of
excluding minorities and males — these groups have disproportionately higher
conviction rates than the general population.

This past June, the Obama Administration announced a series of education and
jobs programs designed to ensure that people who are returning from prison to
the community are equipped with the skills and resources necessary to obtain
employment and support their families.

The Administration’s efforts include the Second Chance Pell Program. The
Department of Education and selected colleges and universities will partner
with a number of federal and state correctional institutions to enroll roughly
12,000 incarcerated students in educational and training programs. The
Department of Labor will provide $31 million in grants to provide job training
and a path to employment after prison.

Policymakers are coming to terms with the human and financial toll of a failed,
and in some instances, a non-existent prison reentry system. Positive steps are
being taken, but the road is long and the time is short.

— Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George
P.C. His book, “The Executioner’s Toll, 2010,” was recently released by
McFarland Publishing. You can reach him at mattmangino.com and follow him on
Twitter at @MatthewTMangino.

Friday, July 22, 2016

The unprecedented
decision to blast Micah Xavier Johnson, who had killed five officers in one of the worst
ambushes against U.S. law enforcement in modern history, was praised as an
innovative way to eliminate a threat without risking more officers’ lives, according to the
Washington Post.

Police said they came up with the deadly plan in
20 minutes after Johnson said that “the end was coming” and negotiations with
him broke down. Their use of a robot is prompting debate about the role of
remote-controlled robots in law enforcement and whether their use to deliver
lethal force should be left to the discretion of police departments or
regulated by state or federal governments. “We’ve crossed a new frontier,
and we look out and we see an absence of law and policy,” said Peter Singer of
New America, who has written on technology, security and robotics.

That void, some worry, has the potential to lead to overuse of machines that
can be used to injure, or kill, suspects.

“Technology can change things,”
said Jay Stanley of the American Civil Liberties Union. “When things become
easier they tend to become overdone, and sometimes you need to reassess rules.”
Police officials said robots were simply another tool in the police arsenal,
and their use was already subject to strict laws and regulations about lethal
force. “Technology cannot override the legal standards governing police
use of deadly force,” said Chuck Wexler of the Police Executive Research Forum.

Thursday, July 21, 2016

Thousands of Offenders serving life in prison without parole
are getting fresh attention after recent rulings by the United States Supreme
Court overhauled America's philosophy of juvenile sentencing, wrote Marc
Bookman of the Atlantic Center for Capital Representation in Vice . Studies of developing brains have
confirmed what every parent already knew: Children are prone to behaving recklessly
and with very little thought to the consequences of their actions. Such
studies, authored by leading medical and psychological experts and appearing in
hundreds of legal opinions, have supported a new, less draconian approach to
the incarceration of children.

In 2005, the US Supreme Court banned the death penalty for
minors; in 2010, it ruled against mandatory life sentences for juveniles who
committed non-homicide offenses; in 2012, it ruled against mandatory life
sentences for juveniles under all circumstances; and this past January, it
ruled that inmates already serving mandatory sentences should receive new
sentencing hearings.

What this means, practically speaking, is that many young
people who had previously been condemned to die in prison will now get a second
look, and many will have a chance for freedom. The opportunity has prompted a
retrospective examination of crimes that occurred decades ago, and of how these
lost boys and girls have emerged from their years of incarceration.

The US Supreme Court barred the executions of 15-year-olds
(in a 1988 case) and all minors in the landmark 2005 decision of Roper v.
Simmons. That opinion, written by Justice Anthony Kennedy, directly
addressed the fear expressed by some of other justices that children no longer
fearing execution might suddenly begin committing murder at a higher rate.
"[T]o the extent the juvenile death penalty might have residual deterrent
effect, it is worth noting that the punishment of life imprisonment without the
possibility of parole is itself a severe sanction, in particular for a young
person."

Wednesday, July 20, 2016

Texas Governor Greg Abbott announced that he plans to propose a law providing for additional
punishment for crimes against law enforcement officers, reported Jurist. The proposed Police
Protection Act (PPA) would extend hate crime protections to law enforcement
officers, organize a "campaign to educate young Texans on the value law
enforcement officers bring to their communities" and "increase
criminal penalties for any crime in which the victim is a law enforcement
officer" even if the crime would not otherwise qualify as a hate crime.
Abbott used assault with bodily injury as an example of a crime subject to the
proposed enhancements, from the current third degree felony to a second degree
felony under the proposal.

The Governor's announcement comes amid a national
conversation about police use of force, particularly against black citizens,
and subsequent retaliation. This week, Texas Senator John Cornyn introduced legislation that would elevate
the penalties for killing, conspire to kill, or attempting to kill officers and
judges.

Last week, North Carolina's Governor Pat McCory signed [JURIST] into law a bill providing that
police camera footage, including body camera footage, is not a matter of public
record and proscribes the procedure for release of footage.
Louisiana Governor
John Bel Edwards signed a "Blue Lives Matter" bill that also raises the penalties [JURIST] for crimes
against police officers. Some have criticized the measures as being redundant
since many laws already raise the penalties for crimes against police officers.

Tuesday, July 19, 2016

Officials in Pennsylvania, which has been slowly preparing
to use risk assessment in sentencing for the past six years, are sensitive to
these potential pitfalls, reported Bloomberg. The state’s experience shows how tricky it is to
create an algorithm through the public policy process. To come up with a
politically palatable risk tool, Pennsylvania established a sentencing
commission. It quickly rejected commercial products like Compas, saying they
were too expensive and too mysterious, so the commission began creating its own
system.

To understand the algorithms being used all over the
country, it’s good to talk to Richard Berk. He’s been writing them for decades. Berk, a
professor at the University of Pennsylvania, is a shortish, bald guy, whose
solid stature and I-dare-you-to-disagree-with-me demeanor might lead people to
mistake him for an ex-cop. In fact, he’s a career statistician.

“Race was discarded immediately as an input. But every other
factor became a matter of debate. When the state initially wanted to include
location, which it determined to be statistically useful in predicting who
would re-offend, the Pennsylvania Association of Criminal Defense Lawyers
argued that it was a proxy for race, given patterns of housing segregation. The
commission eventually dropped the use of location. Also in question: the
system’s use of arrests, instead of convictions, since it seems to punish
people who live in communities that are policed more aggressively.

Berk argues that eliminating sensitive factors weakens the
predictive power of the algorithms. “If you want me to do a totally
race-neutral forecast, you’ve got to tell me what variables you’re going to
allow me to use, and nobody can, because everything is confounded with race and
gender,” he said.

Monday, July 18, 2016

For the first time, a federal judge has suppressed evidence
obtained without a warrant by U.S. law enforcement using a stingray, a
surveillance device that can trick suspects' cell phones into revealing their
locations, reported Reuters.

U.S. District Judge William Pauley in Manhattan ruled that defendant Raymond Lambis' rights were violated when the U.S. Drug
Enforcement Administration used such a device without a warrant to find his
Washington Heights apartment.

The DEA had used a stingray to identify Lambis' apartment as
the most likely location of a cell phone identified during a drug-trafficking
probe. Pauley said doing so constituted an unreasonable search.

"Absent a search warrant, the government may not turn a
citizen's cell phone into a tracking device," Pauley wrote.

The ruling marked the first time a federal judge had
suppressed evidence obtained using a stingray, according to the American Civil
Liberties Union, which like other privacy advocacy groups has criticized law
enforcement's use of such devices.

It was unclear whether prosecutors would seek to appeal. A
spokeswoman for Manhattan U.S. Attorney Preet Bharara, whose office was
prosecuting the case, declined to comment.

Stingrays, also known as "cell site simulators,"
mimic cell phone towers in order to force cell phones in the area to transmit
"pings" back to the devices, enabling law enforcement to track a
suspect's phone and pinpoint its location.

Critics of the technology call it invasive and say it has
been regularly used in secret to catch suspect in violation of their rights
under the U.S. Constitution.

The ACLU has counted 66 agencies in 24 states and the
District of Columbia that own stingrays but said that figure underrepresents
the actual number of devices in use given what it called secrecy surrounding
their purchases.

A Maryland appeals court in March became what the ACLU said
was the first state appellate court to order evidence obtained using a stingray
suppressed. Pauley's decision was the first at the federal level.

The U.S. Justice Department in September changed its
internal policies and required government agents to obtain a warrant before
using a cell site simulator.

Sunday, July 17, 2016

Matthew T. MnginoGateHouse MediaJuly 15, 2016Drug overdoses are
the leading cause of accidental death in the United States. According to the
Center for Disease Control there were 47,055 lethal drug overdoses in 2014.

Opioid addiction is the driving force behind the crisis. More than 194,000
people have died since 1999 from abusing opioid painkillers, including
OxyContin. The prescription drug epidemic is also fueling a heroin crisis that
is shattering communities, taxing law enforcement and draining local government
coffers.

The opioid epidemic is not new. In 2001, as a prosecutor in western Pennsylvania,
I wrote an op-ed for the Pittsburgh Post-Gazette about the scourge of OxyContin
abuse. At the time, my office led a series of workshops with the manufacturer
of OxyContin, Purdue Pharma, to educate health care providers, law enforcement
and the public about the potential dangers of opioid abuse.

OxyContin was approved by the government in 1995 and launched for use in the
U.S. in 1996. FDA approval was granted to Purdue because of the drug’s 12-hour
time release component. At the time those suffering from chronic pain only had
temporary relief every four hours.

There were also concerns at the time that pain killers were being abused.
OxyContin’s time-release component would stop the drug’s recreational use by
eliminating the possibility of a high.

The exact opposite occurred. Within a couple of years, OxyContin exploded on to
the illicit drug scene. The time-release aspect of OxyContin was easily
defeated by chewing or crushing the tablet--causing a powerful high.

As the abuse of OxyContin became overwhelmingly evident, Purdue Pharma, the
manufacturer of OxyContin, began to track the surge in prescriptions, according
to the Los Angeles Times.

Purdue had the opportunity to stop the supply of OxyContin to offices and
clinics across the country that were serving as nothing more than pill mills
generating enormous profit and providing very little medical care.

The Times investigation found that, for more than a decade, Purdue collected
extensive evidence suggesting illegal trafficking of OxyContin and, in many
cases, did not share it with law enforcement or cut off the flow of pills. A
former Purdue executive, who monitored pharmacies for criminal activity,
acknowledged that even when the company had evidence of pharmacies colluding
with drug dealers, it did not stop supplying those stores.

Purdue knew about many suspicious doctors and pharmacies from prescribing
records, pharmacy orders, field reports from sales representatives and, in some
instances, its own surveillance operations, according to court and law
enforcement records discovered by the Times.

The penalty for this type of conduct? The Slacker family, owners of 100 percent
of Purdue Pharma, was listed in Forbes this year as one of the richest families
in America. As the result of OxyContin, the Slackers are worth more than $14
billion.

What being done to combat the opioid epidemic?

This summer, New York Governor Andrew Cuomo signed legislation to combat the
opioid and heroin crisis by increasing access to treatment, expanding community
prevention strategies, and limiting over-prescribing of opioids in his state.

Pennsylvania Governor Tom Wolf recently committed $34 million to address the
state’s opioid abuse crisis. Wolf said his action is “a start” as the state
begins to explore and understand the scope of the opioid epidemic.

This week, Congress gave final passage to legislation that will help
communities’ combat opioid and heroin abuse. The bill will provide grant
programs for addressing opioid abuse and treatment.

“This is a historic moment, the first time in decades that Congress has passed
comprehensive addiction legislation, and the first time Congress has ever
supported long-term addiction recovery,” Ohio Senator Rob Portman, one of the
bill’s sponsors, told Roll Call.
— Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George
P.C. His book, “The Executioner’s Toll, 2010,” was recently released by
McFarland PublishingTo visit the column CLICK HERE

Saturday, July 16, 2016

The momentum for criminal justice reform, which was so
promising in Congress early in the year, has fizzled out.

The Sentencing and Reform Act was to update federal
mandatory minimum sentences, among other things.

Senate Judiciary Committee Chairman Chuck Grassley, R-Iowa,
told RealClearPolitics.com, "I don't see how it gets done before"
July 15, referencing the day the senators depart from Washington and won't
return until after Labor Day. "It's a real big disappointment to me."
After Labor Day there is little chance that anything will get done with the
election looming.

As a result, this year any criminal justice
"reform" comes the old-fashioned way—through the U.S. Supreme Court.
This spring, the court released a flurry of criminal justice decisions, somewhat
obscured by titillating decisions on abortion, immigration and affirmative
action.

The high court did delve into a couple of jury-related
questions, a couple Fourth Amendment cases, sentencing and a corruption
decision.

This is by no means an exhaustive list of the court's
treatment of criminal justice issues, but an examination of a handful of
decisions that might be enlightening.

In Foster v. Chatman, 578 U.S. (2016), decided on May 23,
the court reversed a capital murder conviction, finding that the Georgia
prosecutors' "two peremptory strikes on the basis of race are two more
than the Constitution allows."

Timothy Foster was 18 years old when he was arrested for the
murder of a 79-year-old widow and former elementary school teacher. Foster is
African-American, while the victim was white. Turned in by his girlfriend,
Foster admitted to the crime. But there were questions about his
limited-intellectual capacity and whether he had an accomplice.

When the case went to trial all of the black members of the
jury pool were removed. Foster's trial came only a year after the court's
landmark decision in Batson v. Kentucky, 476 U.S. 79 (1986). Batson was
intended to eliminate racial bias in jury selection.

The 1986 ruling set up a three-step process for testing
complaints about race-based use of peremptory strikes.

First, the accused has to show membership in a specific
racial group. Second, prosecutors need to offer nonracial reasons for removing
the juror. Third, the judge must decide whether, taking everything into
consideration, the defense proved a racial bias.

During jury selection in Foster's case, one black juror was
dismissed for cause, and prosecutors eliminated the other four with peremptory
challenges, offering a variety of nonracial reasons accepted by the presiding
judge.

In 2006, nearly 20 years after his conviction, Foster's
lawyers obtained the prosecution team's jury selection notes under the Georgia
Open Records Act. The name of each potential black juror was highlighted on
four different copies of the jury list and the word "black" was
circled next to the race question on questionnaires for the black prospective
jurors. Three of the prospective black jurors were identified in notes as
"B#1," "B#2," and "B#3."

The high court granted Foster a new trial.

In Lynch v. Arizona, 578 U.S. ___ (2016), decided May 31,
another capital case, the state put the defendant's future dangerousness at
issue and acknowledged that his only alternative sentence to death was life
imprisonment without parole. The Arizona high court concluded that the
defendant had no right to inform the jury of his parole ineligibility. The U.S.
Supreme Court disagreed.

In Simmons v. South Carolina, 512 U. S. 154 (1994), a
capital defendant's future dangerousness was at issue, and the only sentencing
alternative to death available to the jury was life imprisonment without
possibility of parole. The court ruled that the due process clause entitles the
defendant to inform the jury of his parole ineligibility, either by a jury
instruction or in arguments by counsel.

A Pennsylvania case was prominently among the high court's
decisions this spring. In Williams v. Pennsylvania, 579 U.S. ___ (2016),
decided June 9, the court held that due process required that Pennsylvania
Supreme Court Chief Justice Ronald Castille recuse himself from the capital
defendant's post-conviction challenge where Castille had been the district
attorney who gave his official approval to seek the death penalty in the case.

The court stated: "Under the due process clause there
is an impermissible risk of actual bias when a judge earlier had significant,
personal involvement as a prosecutor in a critical decision regarding the
defendant's case." It went on to hold that the justice's authorization to
seek the death penalty against the defendant constituted significant, personal
involvement in a critical trial decision.

In Utah v. Strieff, 579 U.S. ___ (2016), decided June 20,
the defendant was stopped along the street without reasonable suspicion. The
defendant complied and the officer relayed the defendant's information to a
police dispatcher, who reported that the defendant had an outstanding arrest
warrant for a traffic violation. The officer then arrested the defendant
pursuant to the warrant. When a search incident to arrest revealed
methamphetamine and drug paraphernalia, the defendant was charged and
convicted.

The Utah Supreme Court reversed and held that the evidence
was inadmissible.

The U.S. Supreme Court reversed. The court began by noting
that it has recognized several exceptions to the exclusionary rule, three of
which involve the causal relationship between the unconstitutional act and the
discovery of evidence. "Evidence is admissible when the connection between
unconstitutional police conduct and the evidence is remote or has been
interrupted by some intervening circumstance, so that the interest protected by
the constitutional guarantee that has been violated would not be served by
suppression of the evidence obtained."

The court also took up an alcohol-testing incident to an
arrest for driving under the influence. In Birchfield v. North Dakota, 579 U.S.
___ (2016), decided June 23, the court held that while a warrantless breath
test of a motorist lawfully arrested for drunk driving is permissible as a
search incident to arrest, a warrantless blood draw is not. The court
concluded: "Because breath tests are significantly less intrusive than
blood tests and in most cases amply serve law enforcement interests, we
conclude that a breath test, but not a blood test, may be administered as a
search incident to a lawful arrest for drunk driving."

The U.S. Supreme Court overturned the political corruption
conviction of former Virginia Gov. Robert F. McDonnell.

McDonnell received more than $175,000 in loans and
gifts—including a Rolex watch, vacations and partial payment of his daughter's
wedding reception from a Richmond businessman.

The gifts did not violate Virginia law, but federal
prosecutors alleged that in exchange for the gifts, McDonnell engaged in
official acts to arrange meetings for the businessman and hosted a reception at
the governor's mansion for a new product launch.

Although Chief Justice John G. Roberts Jr. tried to distance
himself from the conduct of McDonnell, his concern was clear—the term
"official acts" could cover almost any action a public official
takes.

In McDonnell v. United States, 578 U.S. __ (2016), decided
June 27, Roberts wrote, "Conscientious public officials arrange meetings
for constituents, contact other officials on their behalf, and include them in
events all the time." He continued, "The basic compact underlying
representative government assumes that public officials will hear from their
constituents and act appropriately on their concerns—whether it is the union
official worried about a plant closing or the homeowners who wonder why it took
five days to restore power to their neighborhood after a storm."

In Betterman v. Montana, 578 U.S. __ (2016), decided May 19,
the Sixth Amendment's speedy trial guarantee does not apply to the sentencing
phase of a criminal prosecution. The defendant argued that the 14-month gap
between conviction and sentencing violated his speedy trial right. For
inordinate delay in sentencing, although the speedy trial clause does not
govern, a defendant may have other recourse, including, in appropriate
circumstances, tailored relief under the due process clauses of the Fifth and Fourteenth
amendments.

Finally, for those foolish enough to think that reform could
somehow be spurred by the U.S. Supreme Court there is Taylor v. United States,
578 U.S. __ (2016), decided June 20. Instead of limiting the federal
government's reach in local criminal matters, the court expanded the reach.

As summarized by Scotusblog.com, Taylor holds that,
"Because the Hobbs Act criminalizes robberies and attempted robberies that
affect any commerce 'over which the U.S. has jurisdiction,' the prosecution in
a Hobbs Act robbery case satisfies the act's commerce element if it shows that
the defendant robbed or attempted to rob a drug dealer of drugs or drug
proceeds."

So much for reform, prosecutors will be further clogging
federal prisons with local thugs who prey on local drug dealers.

Special to the Law Weekly Matthew T. Mangino is of counsel
with Luxenberg Garbett Kelly & George. His book "The Executioner's
Toll," 2010, was released by McFarland Publishing.

Friday, July 15, 2016

Georgia executed John Wayne Conner on July 14, 2016. He was convicted of
beating a friend to death during an argument after a night of partying more
than three decades ago, according to The Associated Press.

Conner, 60, was put to death by injection of the
barbiturate pentobarbital at the state prison in Jackson. He was convicted of
fatally beating his friend J.T. White during an argument after a night of
drinking and smoking marijuana in January 1982.

The execution was the sixth in Georgia this year and the
most in a calendar year in the state since the death penalty was reinstated
nationwide in 1976. Georgia executed five inmates last year and in 1987.

Only five states have carried out death sentences this year
for a total of 14. Aside from the five already put to death in Georgia, six
inmates have been executed in Texas and one each in Alabama, Florida and
Missouri.

The Georgia Board of Pardons and Paroles on Wednesday
declined to grant him clemency. The board is the only entity in Georgia
authorized to commute a death sentence.

The Georgia Supreme Court in a 5-2 decision on Thursday
rejected Conner's appeal of a lower court ruling and declined to halt his
execution. Conner's attorneys had argued he was ineligible for execution
because he's intellectually disabled, that his trial attorney was ineffective
and that executing him after 34 years on death row would amount to
unconstitutional cruel and unusual punishment.

Thursday, July 14, 2016

A federal appeals court has upheld a federal law that
generally bars the possession of machine guns.

Machine guns are not protected by the Second Amendment, the
New Orleans-based 5th U.S. Circuit Court of Appeals ruled on June 30, reported the ABA Journal.

The plaintiff wanted to build an M-16 machine gun from
components of the AR-15. The M-16, which is used in the U.S. military, is
defined as a machine gun because it fires more than one round per trigger
action, the appeals court explained in a footnote. The AR-15 is a
semi-automatic weapon that fires only one round per trigger action.

The 5th Circuit based its decision on a reading of District
of Columbia v. Heller, the Supreme Court decision that found the Second
Amendment protects an individual right to own a gun.

Heller distinguished between guns used in the military
and those possessed at home for self-defense, the appeals court said. Only the
second category has Second Amendment protection, though it may sometimes
overlap with the first, the appeals court found.

“The Second Amendment does not create a right to possess a
weapon solely because a weapon may be used in or is useful for militia or
military service,” the appeals court said.

Wednesday, July 13, 2016

The city of Cleveland is concerned about visitors and protesters taking firearms downtown during next
week's Republican National Convention, where thousands of people plan to
demonstrate, reported the New York Times.

Those who legally own
guns can take them into the 1.7-square-mile area where events and protests
connected to the convention will be held. Protesters will flood the city, with
causes ranging from white supremacy to
Palestinian rights. “Obviously, everybody is on edge after Dallas,”
said Brian Kazy of the Cleveland City Council's Safety Committee. Kazy
said he had never been concerned about Ohio’s open-carry laws, according to The Crime Report. “If you had
some mass confusion, even if you had a civilian who was carrying who would
attempt to help out, I think the mentality of any law enforcement officer would
see an individual with a gun, would see an individual possibly shoot and would
react to that,” he said.
Officials are promising increased security during the Republican gathering.
Within the convention area, the Secret Service will set up a smaller perimeter
near the Quicken Loans Arena that will have stricter security and prohibit
guns.

Delegates to the convention will not be able to take guns onto the
convention floor. Given the recent tumult around the nation, some leaders are
anxious that the environment could turn dangerous. One group of current and
former members of the military called the Oath Keepers, who have shown up at
other tense events heavily armed, plan to carry weapons into
Cleveland. Stephen Loomis, president of the Cleveland Police Patrolmen’s
Association, said he strongly supports citizens’ rights to bear arms, but he is
urging people not to take their guns near Cleveland’s downtown during the
convention. “The last thing in the world we need is anybody walking around
here with AR-15s strapped to their back,” he said.

Tim Selaty, director of operations at Citizens for Trump,
said his group was paying for private security to bolster the police presence.
While Mr. Selaty said people should be allowed to carry guns, his group is
banning long weapons from a rally in a park it is hosting on Monday.

“We’re going to insist that they leave any long arms out for
sure because we believe that will make sure our people are safer,” he said. “In
other words, no AR-15s, no shotguns or sniper rifles — all of the things that
you would think somebody would bring in to hurt a lot of people in a very short
time.”

But, he said, he does generally believe civilians being
armed make for a safer environment and that he “can’t blame” people who are
scared because of Dallas and want to come to Cleveland armed.

Tuesday, July 12, 2016

More than 194,000 people have died since 1999 from overdoses
involving opioid painkillers, including OxyContin, reported the Los Angeles Times. Nearly 4,000 people start
abusing those drugs every day, according to government statistics. The
prescription drug epidemic is fueling a heroin crisis, shattering communities
and taxing law enforcement officers who say they would benefit from having
information such as that collected by Purdue Pharma.

A private, family-owned corporation, Purdue Pharma has
earned more than $31 billion from OxyContin, the nation’s bestselling
painkiller. Purdue and three of its
executives pleaded guilty to federal charges of misbranding OxyContin in what
the company acknowledged was an attempt to mislead doctors about the risk of
addiction. It was ordered to pay $635 million in fines and fees.

A Los Angeles Times investigation found that, for more than
a decade, Purdue collected extensive evidence suggesting illegal trafficking of
OxyContin and, in many cases, did not share it with law enforcement or cut off
the flow of pills. A former Purdue executive, who monitored pharmacies for
criminal activity, acknowledged that even when the company had evidence
pharmacies were colluding with drug dealers, it did not stop supplying
distributors selling to those stores.

Purdue knew about many suspicious doctors and pharmacies
from prescribing records, pharmacy orders, field reports from sales
representatives and, in some instances, its own surveillance operations,
according to court and law enforcement records, which include internal Purdue
documents, and interviews with current and former employees.

Monday, July 11, 2016

Violence in Chicago is reaching epidemic proportions, wrote Heather Mac Donald in the City Journal. In the
first five months of 2016, someone was shot every two and a half hours and
someone murdered every 14 hours, for a total of nearly 1,400 nonfatal shooting
victims and 240 fatalities. Over Memorial Day weekend, 69 people were shot,
nearly one per hour, dwarfing the previous year’s tally of 53 shootings over
the same period. The violence is spilling over from the city’s gang-infested
South and West Sides into the downtown business district; Lake Shore Drive has
seen drive-by shootings and robberies.

The growing mayhem is the result of Chicago police officers’
withdrawal from proactive enforcement, making the city a dramatic example of
what I have called the “Ferguson effect.” Since the shooting of Michael Brown
in Ferguson, Missouri, in August 2014, the conceit that American policing is
lethally racist has dominated the national airwaves and political discourse,
from the White House on down. In response, cops in minority neighborhoods in
Chicago and other cities around the country are backing off pedestrian stops
and public-order policing; criminals are flourishing in the resulting vacuum.
(An early and influential Ferguson-effect denier has now changed his mind: in a
June 2016 study for the National Institute of Justice, Richard Rosenfeld of the
University of Missouri–St. Louis concedes that the 2015 homicide increase in
the nation’s large cities was “real and nearly unprecedented.” “The only
explanation that gets the timing right is a version of the Ferguson effect,” he
told the Guardian.)

Chicago mayor Rahm Emanuel warned in October 2015 that
officers were going “fetal,” as shootings in the city skyrocketed. But 2016 has
brought an even sharper reduction in proactive enforcement. Devastating
failures in Chicago’s leadership after a horrific police shooting and an
ill-considered pact between the American Civil Liberties Union and the police
are driving that reduction. Residents of Chicago’s high-crime areas are paying
the price.

Sunday, July 10, 2016

More than 40 percent of people killed by Massachusetts
police over the last decade were suicidal, mentally ill, or showed clear signs
of crisis, a Boston Globe investigation shows. The deaths are the heavy human
toll of an ongoing collision between sick people failed by the mental health
care system and police who are often poorly equipped to help, but are thrust
into this dangerous role.

The Globe found that 31 of the 74 men and women who
were fatally shot between 2005 and 2015 were suicidal or showing clear signs of
mental illness, based on interviews, court records, and law enforcement and
media reports. Police shot and injured another 24 people who were apparently
mentally ill or suicidal in the same period. One third of all police shootings
— 55 in all, fatal and nonfatal — involved an apparent mental health crisis.

No one can say how many deaths and injuries might have been
prevented if everyone who was shot had received the mental health care they
needed. But in many of the cases studied by the Globe, there were
opportunities to head off the showdown with police: cries for help that went
unheeded; hospitals that discharged patients too quickly; overwhelming
responsibility left to struggling people and their desperate families.

It is a problem that has grown steadily worse for police
since the 1970s, as Massachusetts shut down 10 psychiatric hospitals and
returned thousands of mentally ill people to their communities ­— often with
grossly inadequate outpatient care.

Deinstitutionalization allowed many people with mental
illness to lead happier, more productive lives, but it also meant many more
mental health crises unfolded in suburban living rooms and on city streets
instead of on the grounds of state hospitals. Without adequate community-based
mental health care to address them, complex problems escalate until they
finally fall to the police.

Saturday, July 9, 2016

This month marks the 40th anniversary of the return of the
death penalty. From 1972 to 1976 America was without capital punishment. In
1972, the U.S. Supreme Court decided Furman v. Georgia. The court ruled that
the death penalty was unconstitutional, violating the Eighth Amendment ban
against cruel and unusual punishment.

At the time, U.S. Supreme Court Justice Potter Stewart
wrote, “These death sentences are cruel and unusual in the same way that being
struck by lightning is cruel and unusual.” A year earlier, the justices had
upheld the constitutionality of the death penalty under the due process clause
of the Fourteenth Amendment. According to The Marshall Project, Furman seemed
headed in the same direction until Stewart struck a deal with Justice Byron
White, who’d been on the fence about the death penalty. Stewart agreed to
abandon his moral statement against the death penalty and would instead say
that the problem with capital punishment was excessive arbitrariness. The deal
resulted in a surprising 5-4 decision overturning the death penalty.

The decision forced state legislatures to review the death
penalty and eliminate the arbitrary, capricious and racially discriminatory
aspects of capital punishment. The Court suggested that states establish
criteria to direct and limit the circumstances in which the death penalty would
apply and to overhaul the sentencing process.

In July 1976, the U.S. Supreme Court in Gregg v. Georgia,
found that three of five states that amended their death penalty statute —
Georgia, Florida and Texas — did conform to the directives of Furman. The death
penalty was back.

The first man executed after Gregg was Gary Gilmore of Utah.
Gilmore wanted to be executed, and the state of Utah granted his wish. He was
executed by firing squad on January 17, 1977. Since Gilmore, more than 1,400
men and women have been executed nationwide. Texas alone is responsible for
more than one-third of those executions.

Executions steadily increased through the 1990s and then
began to recede again to the present. Public support for the death penalty
reached its lowest point in 1966, when only 42 percent of Americans supported
the death penalty. During the 1990s as crime rates soared, support for the
death penalty rose to as high as 80 percent. Since then, support for the death
penalty has remained steady just above 60 percent, according to Gallup.

Executions are at the lowest level in decades. In the first
half of 2016 there were 14 executions. Those executions occurred in Texas (6),
Georgia (5), Alabama (1), Florida (1) and Missouri (1).

There are seven executions planned for the rest of the year,
all in Texas according to the Death Penalty Information Center. Twenty-one
executions would be the fewest since 1992 when there were 14 executions and a
fraction of the 98 executions carried out in 1999.

Between 1973 and 2013, only 16.1 percent of people sentenced
to death were ultimately executed. In other words, the chance of being executed
— among defendants sentenced to death — is only about one in six. The
probability of receiving the death penalty in the U.S. is miniscule. The
Centers for Disease Control reported 16,121 homicides in 2013. There were 39
executions — an execution rate of approximately a quarter of one percent.

The decision in Gregg failed in limiting the circumstances
in which the penalty may be applied. A California study found that 87 percent
of murders are potentially eligible for the death penalty under the state’s
definitions. In Colorado, the rate is 91.1 percent.

My book, “The Executioner’s Toll 2010: The Crimes, Arrests,
Trials, Appeals, Last Meals, Final Words and Executions of 46 Persons in the
United States,” examined every execution in 2010. My research led to the
conclusion that the death penalty was once again arbitrary.

Arbitrary — as it was in 1972 — in the manner in which it is
imposed. And today, arbitrary in the manner in which it is carried out.
Twenty-one, or fewer, executions in a single year out of a pool of nearly 3,000
men and women on death row is certainly arbitrary and capricious.

— Matthew T. Mangino is of counsel with Luxenberg, Garbett,
Kelly & George P.C. His book, “The Executioner’s Toll, 2010,” was recently
released by McFarland Publishing. You can reach him at mattmangino.com and
follow him on Twitter at @MatthewTMangino.

Friday, July 8, 2016

The scheduled July 14 execution of a Houston man, Perry
Eugene Williams, convicted of abducting and killing a Texas Medical Center
student was delayed indefinitely this week, after state officials failed to
meet a deadline for obtaining test results on the purity of the lethal
injection drugs, reported the Houston Chronicle.

Williams was one of only seven executions, all in Texas, to
be carried out before the end of 2016. With 14 executions so far this
year, 2016 looks to have the fewest executions since 1992.

If this issue with regard to drug purity is not resolved in
Texas, there may not be another execution in the United States this year.

Thursday, July 7, 2016

When California voters decide in November whether to abolish
the death penalty or speed it up, the rival measures will compete in a
political climate that appears to be shifting, gradually, against capital
punishment, reported the San Francisco Chronicle.

The ballot this November will include Prop. 62, to repeal
the death penalty, and Prop. 66, a counter-initiative backed by prosecutors to
reduce the time between sentencing and execution, in a state where condemned
prisoners typically spend more than two decades on Death Row. Among other
things, it would limit appeals and require the state Supreme Court to decide
capital cases within five years of sentencing. If both measures pass, only the
one with the most votes will become law.

Nationally, death sentences and executions are declining,
and the Democratic Party seems prepared to oppose the death penalty for the
first time in 44 years. In California, both U.S. Senate candidates oppose
executions, and at least one prominent death penalty supporter is keeping a low
profile.

For decades in California, the death penalty has been a
subject that candidates have gladly embraced if they supported it. If not, they
mostly have tried to change the subject.

When Gov. Jerry Brown vetoed a death penalty bill in 1977,
he was overridden by a Legislature with a Democratic majority. The next year,
voters approved an expansion of the law by a 71 percent majority.

Republican state Sen. George Deukmejian highlighted his role
as the bill’s author in his successful campaigns for state attorney general in
1978 and for governor in 1982 and 1986. And voters in 1986 removed Chief
Justice Rose Bird and two of her state Supreme Court colleagues, Justices Cruz
Reynoso and Joseph Grodin, largely because of their decisions to overturn death
sentences.

As recently as November 2012, a week before a vote to repeal
the death penalty in California, Deukmejian appeared at a news conference
urging voters to defeat the measure. By his side were two other former
governors, Republican Pete Wilson and Democrat Gray Davis, who during his
tenure had appointed only judges who favored the death penalty.

Wednesday, July 6, 2016

Judges in Chicago's Cook County routinely make bail
decisions for crime suspects contrary to what the court's new risk-assessment
system calls for, The Crime Report.
A review of more than 1,500 cases this year obtained by
the Chicago Sun-Times, found that he Cook County sheriff’s office showed judges’ bail
decisions differed from the guidelines about 85 percent of the time. The
sheriff’s study found bail decisions were “inconsistent,” even when defendants’
backgrounds and the charges they faced were factored in. The 90-page study, the
results of which Chief Judge Timothy Evans disputes, found that the amount and
conditions of bail varied widely depending on which judge was presiding on a
given day.

Illinois Supreme Court Justice Anne Burke, who pushed
for the new system, said recently, “One of the key problems with our bond court
judges is not just their unwillingness to apply the risk assessments when
making their decisions but ... that they are not being sufficiently trained and
supervised and are not being held accountable.”
The assessments assign a
risk-level number that corresponds to a recommended bail. One aim was to
identify more nonviolent suspects who qualify for release pending trial. Pat Milhizer,
a court spokesman, says that in the three months before the assessments began,
52 percent of defendants in nonviolent, non-weapons felony cases were released;
from January through May, that rose to 67 percent. Milhizer says training for
judges doesn’t replace sound judgment. He points to a case in which the
assessment system recommended releasing a man charged with gun possession even
though he was accused of pointing the gun at someone and pulling the trigger
twice, without it firing. Despite the recommendation, the judge set a
significant bail.

Tuesday, July 5, 2016

U.S. Supreme Court Justice Sonia Sotomayor has emerged as a
consistent and outspoken voice in favor of broad Fourth Amendment rights.
Here's a brief look at some of Sotomayor's most notable actions in recent
Fourth Amendment cases, courtesy of Reason magazine.

Missouri v. McNeely

At issue in this 2013 dispute is whether the Fourth
Amendment stands in the way of the police obtaining a warrantless and
nonconsensual blood test from a suspected drunk driver. Writing for the
majority, Sotomayor held that
the amendment is indeed such a bulwark. "In those drunk-driving
investigations where police officers can reasonably obtain a warrant before a
blood sample can be drawn without significantly undermining the efficacy of the
search," Sotomayor wrote, "the Fourth Amendment mandates that they do
so."

Navarette v. California

In this 2014 case a majority of the Supreme Court said that
no Fourth Amendment violation took place when the police conducted a traffic
stop and resulting drug bust based solely on information obtained from an anonymous
telephone tip. "The Court's opinion serves up a freedom-destroying
cocktail," Justice Antonin Scalia seethed in dissent. "All the
malevolent 911 caller need do is assert a traffic violation, and the targeted
car will be stopped, forcibly if necessary, by the police." That troubling
scenario, Scalia wrote, "is not my concept, and I am sure it would not be
the Framers', of a people secure from unreasonable searches and seizures."
Sotomayor signed on to Scalia's dissent.

Rodriguez v. United States

At issue in this case was whether a police officer
"unnecessarily prolonged" an otherwise legal traffic stop when he
called for backup in order to walk a drug-sniffing dog around the stopped
vehicle. During the January 2015 oral
arguments, Justice Department lawyer Ginger Adams insisted that the police
are entitled to broad leeway when it comes to determining the amount of time
that's "reasonably required" in that sort of situation. Justice
Sotomayor took a decidedly different view. "We can't keep bending the
Fourth Amendment to the resources of law enforcement," an exasperated
Sotomayor lectured Adams. "What you're proposing," she told the
government lawyer, is an approach that's "purely to help the police get
more criminals, yes. But then the Fourth Amendment becomes a useless piece of
paper." Three months later Sotomayor joined the majority in voiding the
officer's unconstitutional actions.

Mullenix v. Luna

This case centered on a whether or not a police officer was
entitled to qualified immunity after using deadly force to end a high-speed car
chase. In a 2015 per curiam opinion,
the Supreme Court held that the officer was entitled to qualified immunity. In
a lone dissent, Sotomayor faulted her colleagues for "sanctioning a 'shoot
first, think later' approach to policing [that] renders the protections of the
Fourth Amendment hollow."

Utah v. Strieff

In this 2016 ruling the
Supreme Court held that the Constitution does not prohibit law enforcement
officials from using evidence that had been obtained as a result of an illegal
police stop because it turned out that the man who was illegally stopped
happened to be the subject of an outstanding traffic warrant. "This case allows
the police to stop you on the street, demand your identification, and check it
for outstanding traffic warrants--even if you are doing nothing wrong,"
Sotomayor fumed in dissent. "If the officer discovers a warrant for a fine
you forgot to pay, courts will now excuse his illegal stop and will admit into
evidence anything he happens to find by searching you after arresting you on
the warrant." In her view, "the Fourth Amendment should prohibit, not
permit, such misconduct" by the police.

Birchfield v. North Dakota

The final case in our list was decided just last week. At
issue here was whether warrantless chemical tests for suspected drunk drivers
violate the Fourth Amendment. In a divided opinion, the Court held that
warrantless blood tests do violate the Constitution but warrantless breath
tests do not. Writing separately, Justice Sotomayor insisted that both types of
warrantless DUI tests should have been struck down as unconstitutional.
"Because no governmental interest categorically makes it impractical for
an officer to obtain a warrant before measuring a driver's alcohol level,"
Sotomayor wrote, "the Fourth Amendment prohibits such searches without a
warrant, unless exigent circumstances exist in a particular case."

Monday, July 4, 2016

The percent of American households owning guns is at a
near-40 year low in the latest CBS News poll released this month, but the number of gun purchases are at historic highs, reported the Washington Post.

According to the survey, which was conducted among 1,001
Americans in the aftermath of the Orlando nightclub shooting, 36 percent of
U.S. adults either own a firearm personally, or live with someone who
does. That's the lowest rate of gun ownership in the CBS poll going back to
1978. It's down 17 points from the highest recorded rate in 1994, and nearly 10
percentage points from 2012.

Different national polls tend to show slightly different
rates of gun ownership. The latest household gun ownership rate in the General
Social Survey, in 2014, was 32 percent. The October 2015 Gallup survey showed a higher rate
of 43 percent, including guns kept on property outside the home.

But gun purchases, as measured by FBI firearm background
checks, are at historic highs. And data from the Bureau of Alcohol,
Tobacco and Firearms shows that gun manufacturers are churning out record numbers of guns. Many gun rights advocates argue that these figures mean that the overall
number of gun owners is growing: If more guns are being sold, more people must
be owning guns.

But the declining rates of gun ownership across three major
national surveys suggest a different explanation: that most of the rise in
gun purchases is driven by existing gun owners stocking up, rather than by
people buying their first gun. A Washington Post analysis last year found that
the average American gun owner now owns approximately eight firearms, double the number in
the 1990s.

Other research bears this out as well. A 2004 survey found
that the average gun owner owned 6.6 firearms, and that the top 3
percent of gun owners owned about 25 guns each. More recently, a CBS News poll
taken in March of this year found that roughly 1 in 5 gun owners owned 10 guns or more.

Sunday, July 3, 2016

In Taylor v.
United States , decided June 20, 2016, by a 7-1 vote, with the
exception of Justice Clarence Thomas, the Supreme Court
gave all conscientious, sentencing-reform-minded folks swift kick in the pants, reported JURIST.

"Because the Hobbs Act criminalizes robberies and
attempted robberies that affect any commerce 'over which the US has
jurisdiction,' the prosecution in a Hobbs Act robbery case satisfies the act's
commerce element if it shows that the defendant robbed or attempted to rob a
drug dealer of drugs or drug proceeds."

"The Hobbs Act makes it a crime for a person to affect
commerce, or to attempt to do so, by robbery. In an opinion by Justice Samuel
Alito, the Court found that because Congress has the power to regulate the
marijuana under the Commerce Clause, Congress may also regulate drug theft. 'By
targeting a drug dealer in this way, a robber necessarily affects or attempts
to affect commerce over which the United States has jurisdiction.'"

Justice Clarence Thomas filed a dissenting opinion. He would
'hold that the Act punishes a robbery only when the government proves that the
robbery itself affected interstate commerce.'"

Respectfully, we submit that in his dissent in Taylor,
Justice Thomas is the lone Justice to get it right. (And, one has to wonder if
his position might have carried more weight= —maybe even the day= —had it had
the backing of a still-alive, formidable and feisty, Justice Scalia).

In his dissent, Justice Thomas writes: "When courts
construe criminal statutes" it goes without saying that, "they must
be especially careful. And when a broad reading of a criminal statute would upset
federalism, courts must be more careful still."

Thomas concludes that the majority opinion "fails to
identify the language in the Hobbs Act that" unequivocally evidences
"Congress' intention to reach the sorts of local, small-scale robberies
that States traditionally prosecute."

Taylor was convicted of two separate robberies of low-level
marijuana dealers. The underwhelming spoils of Taylor's crimes: three cell
phones, $40, some jewelry, and a marijuana cigarette= —hardly, one would think,
reason to invoke federal prosecution under the Hobbs Act= —with each charged
Hobbs Act violation exposing Taylor to up to 20 years in federal prison (where
under federal sentencing law he will have to serve a minimum of 85 percent of
his sentence, even with credit for good behavior).

Saturday, July 2, 2016

This week the U.S. Supreme Court overturned the political
corruption conviction of former Virginia Governor Robert F. McDonnell. What
does the decision mean for politicians, and the public, moving forward?

McDonnell received more than $175,000 in loans and gifts — including a Rolex
watch, vacations and partial payment of his daughter’s wedding reception from a
Richmond businessman.

The gifts did not violate Virginia law, but federal prosecutors alleged that in
exchange for the gifts McDonnell engaged in “official acts” to arrange meetings
for the businessman and hosted a reception at the governor’s mansion for a new
product launch.

McDonnell’s wife was also charged and her conviction was not before the court.

Although Chief Justice John G. Roberts, Jr., tried to distance himself from the
conduct of McDonnell his concerns were clear — the term “official acts” could
cover almost any action a public official takes.

“There is no doubt that this case is distasteful; it may be worse than that.
But our concern is not with tawdry tales of Ferraris, Rolexes, and ball gowns,”

At trial, prosecutors had to prove that McDonnell committed, or agreed to
commit, an “official act” in return for the loans and gifts that he received.
The term is defined by federal law as “any decision or action on any question,
matter, cause, suit, proceeding or controversy, which may at any time be
pending, or which may by law be brought before any public official, in such
official’s official capacity, or in such officials’ place of trust or profit.”

According to The Intercept, prosecutors argued that the wording of the
definition was intentionally broad and designed to cover “any decision or
action, on any question or matter, that may at any time be pending, or which
may by law be brought before any public official, in such official’s official
capacity.”

Prosecutors contended that “official act” could specifically include arranging
meetings, contacting other public officials or hosting an event concerning any
subject, including a broad policy initiative such as economic development.

McDonnell argued to the Supreme Court, according to The Intercept, that both
the context and a real-world understanding of the role of a public official
requires a more narrow reading of the definition of “official act” to cover
only those acts which “direct a particular resolution of a specific government
decision.”

The Supreme Court unanimously agreed with McDonnell and his lawyers.

“Conscientious public officials arrange meetings for constituents, contact
other officials on their behalf, and include them in events all the time,”
wrote Roberts. “The basic compact underlying representative government assumes
that public officials will hear from their constituents and act appropriately
on their concerns — whether it is the union official worried about a plant
closing or the homeowners who wonder why it took five days to restore power to
their neighborhood after a storm.”

Robert’s wrote that prosecutors “could cast a pall of potential prosecution
over these relationships.” For instance, according to the Washington Post, if a
union or group made some show of gratitude in the form of a gift, campaign
contribution or internal word of praise to its members, the officeholder may be
the target of prosecution.

The opinion may not have been entirely clear as to what an “official act” is,
but it was clear as to what it is not, “Setting up a meeting, calling another
public official, or hosting an event does not, standing alone, qualify as an
‘official act.’”

This decision put the brakes on criminalizing politics. The role of an elected
official is to represent the interests of their constituency. Officeholders
should and must, help and promote individuals and businesses in their city,
state or district. To do anything less would be a disservice, to risk being
labeled a criminal in the process is unconscionable.

Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George
P.C. His book, “The Executioner’s Toll, 2010,” was recently released by
McFarland Publishing. You can reach him at mattmangino.com and follow him on
Twitter at @MatthewTMangino.

Friday, July 1, 2016

Fifty years ago this month, the U.S. Supreme Court ruled in
Miranda v. Arizona that police officers are required to inform a suspect that
he has the right to remain silent and the right to legal counsel when being
questioned. Those rights have evolved overtime and not necessarily for the
better.

The landmark Supreme Court decision has become a part of
American culture. Miranda’s conversion from legal holding to cultural icon is
due mainly to the nation’s insatiable appetite for television crime dramas.
Everyone with a TV has heard Miranda warnings.

What did Miranda do to earn his place in the American
consciousness? In 1963, Ernesto Miranda was arrested for robbery. While in the
midst of a custodial interrogation by police he confessed to raping an 18
year-old woman. At trial, prosecutors offered his confession into evidence.
Miranda was convicted of rape and sentenced to prison. He appealed and his case
made its way to the U.S. Supreme Court.

The Supreme Court ruled in favor of Miranda and excluded his
confession. Chief Justice Earl Warren wrote the court’s opinion finding a
confession would be barred under the Fifth and Sixth amendments unless a
suspect had been made aware of his rights and the suspect had waived them.
Warren made it clear, “If the individual indicates in any manner, at any time
prior to or during questioning, that he wishes to remain silent, the
interrogation must cease ... If the individual states that he wants an
attorney, the interrogation must cease until an attorney is present.”

As we mark the fiftieth anniversary of Miranda, it is
important to note that the U.S. Supreme Court has continually tested, and at
times, expanded and restricted, the decision.

For instance, in 1981 the Edwards rule was established. The
court held once an accused invoked his right to have counsel present during
custodial interrogation a valid waiver of that right could not be later
established. The rule created a presumption that once a suspect invoked his
right to the presence of counsel pursuant to Miranda, any waiver of that right
in response to a subsequent police attempt at custodial interrogation was
involuntary.

That changed in 2010. In a case out of Maryland, the court
established a bright-line rule finding if at least 14 days passed from the time
the suspect invoked his rights under Miranda the police could again initiate an
interrogation of the suspect.

Although the Miranda warnings are etched in nearly
everyone’s consciousness, the Supreme Court found that the police do not have
to use those magical words to get the point across. In a 2010 case out of
Florida, the court said as long as the rights are articulated to a suspect in a
reasonable manner and the rights are understood they are sufficient. The rights
that most of us can recite by rote do not need to be conveyed by the police
with any precision.

Finally in 2013, in a case out of Texas, a murder suspect
who answered questions for almost an hour was then asked by police if the
shotgun shells found at the murder scene would match a shotgun found in his home.
The suspect stopped talking.

The police made notes of his conduct once he stopped
talking. According to the Supreme Court, the suspect “[l]ooked down at the
floor, shuffled his feet, bit his bottom lip, cl[e]nched his hands in his lap,
[and] began to tighten up.”

That conduct was used at his trial as evidence that he was
hiding his guilt. The Supreme Court found that silence is not enough to invoke
the right to remain silent. For purpose of the Fifth Amendment, silence isn’t
what it used to be.

Miranda has been revered for half a century. The decision,
which outlined specific rules for those accused of a crime, has evolved into a
nuanced set of standards that can lure the unsophisticated person into a false
sense of constitutional protection.

Matthew T. Mangino is of counsel with Luxenberg, Garbett,
Kelly & George P.C. in New Castle, Pa. His book, “The Executioner’s Toll,
2010” was released by McFarland Publishing. You can reach him at
www.mattmangino.com and follow him on Twitter @MatthewTMangino.

About Matt

An analysis of crime and punishment from the perspective of a former prosecutor and current criminal justice practitioner.
The views expressed on this blog are solely those of the author and do not reflect the opinions or postions of any county, state or federal agency.